Secretary DFFH v Hage (a pseudonym) - [2025] VSC 18

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT/GENERAL LIST
S ECI 2024 06579
BETWEEN:
SECRETARY OF THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING	Applicant
-and-
BEVERLEY HAGE (a pseudonym)	Respondent

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 18, 20, 23 December 2024; 13, 17 and 23 January 2025.
DATE OF JUDGMENT:	31 January 2025
CASE MAY BE CITED AS:	Secretary DFFH v Hage (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VSC 18

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COURTS AND JUDGES — Parens patriae jurisdiction — Pregnant teenage child the subject of a ‘care by Secretary’ protection order under s 289 of the Children Youth and Families Act 2005 — Child in secure welfare service and in late stages of pregnancy— Application for declarations and orders authorising use restraint to facilitate medical treatment and procedures, including planned caesarean section birth under general anaesthetic — Whether such a procedure also requires the authorisation of the Court - Application for orders authorising Secretary to determine whether to use restraint to facilitate medical treatment and caesarean section birth — Application for order authorising the Secretary to place the child in a secure welfare service in circumstances where the Secretary has previously placed the child in secure welfare service for two periods of 21 days and statutory powers for continued placement are exhausted – Whether order authorising child’s placement in secure welfare service is within the power of the Court in its parens patriae jurisdiction — Best interests of the child — Children, Youth and Families Act 2005 s 172, s 173 — Medical Treatment Planning and Decisions Act 2016 - Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218.

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Counsel	Solicitors
For the Applicant	Ms S Fitzgerald of counsel (11 and 23 December 2024 and 13, 17 and 23 January 2025) Ms Fiona McLeod SC (18 December 2024) Ms Gemma Cafarella (18, 20 and 23 December 2024)	Legal Services Branch, DFFH
For the Respondent	Mr E Myles (11, 18, 20 and 23 December 2024 and 13, 17 and 23 January 2025) Dr I Freckelton KC (18, 20 and 23 December 2024)	Victoria Legal Aid

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Issues for determination................................................................................................................... 3

Procedural background to this application................................................................................... 4

The Originating Motion and Amended Originating Motions............................................... 7

Is there power to authorise further placement in a secure welfare service?........................ 12

The scope of the accommodation orders sought by the Secretary...................................... 12
The legal framework................................................................................................................... 14
The Court’s parens patriae jurisdiction.......................................................................... 18

Conclusions as to power to order that Beverley be placed in a secure welfare service and secure accommodation.................................................................................................................. 20

Should the Court authorise a further placement in the secure welfare service?................. 20

The Secretary’s evidence............................................................................................................ 20
Evidence and instructions from Beverley................................................................................ 23
My observations on a view of the secure welfare service..................................................... 24
The further instructions from the Secretary as to alternative accommodation........ 25

The submissions of the Secretary.............................................................................................. 25
The submissions of counsel for Beverley................................................................................. 25

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Secretary DFFH v Hage (a pseudonym)

Details

AGLC: Secretary DFFH v Hage (a pseudonym) [2025] VSC 18
Case: [2025] VSC 18
Decision Date: 31 January 2025

CaseChat Overview and Summary

The case of Secretary DFFH v Hage involved a pregnant teenage child under a ‘care by Secretary’ protection order, who was in the late stages of pregnancy and in a secure welfare service. The Secretary sought declarations and orders to allow the use of restraint to facilitate medical treatment and procedures, including a planned caesarean section under general anaesthetic. The court was required to determine whether such procedures necessitated court authorisation and whether the court could order the child's continued placement in a secure welfare service, given the statutory powers for continued placement were exhausted.

The primary legal issues were whether the Secretary needed court authorisation to use restraint for the planned caesarean section and whether the court had the power to order the child’s continued placement in a secure welfare service. The court considered the statutory framework provided by the Children, Youth and Families Act 2005 and the Medical Treatment Planning and Decisions Act 2016. The court also examined the precedent set by Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case), which addressed the court's parens patriae jurisdiction in relation to medical treatment decisions for children.

The court found that the Secretary did not need separate court authorisation for the planned caesarean section, as it was deemed part of the broader medical treatment that the Secretary was already authorised to provide. Regarding the placement in a secure welfare service, the court held that it had the power to order the child’s continued placement where statutory powers were exhausted, as this was within the court's parens patriae jurisdiction to act in the best interests of the child. The court emphasised the importance of balancing the child's autonomy and best interests against the necessity for medical intervention and welfare support.

The court granted the declarations and orders sought by the Secretary, authorising the use of restraint to facilitate the planned caesarean section and the continued placement of the child in a secure welfare service. This decision underscored the court's role in ensuring the best interests of the child are prioritised in complex medical and welfare situations.

Orders